24 ": . :.( ' ..... ; P<_! :-:'; ::, "" )j : ,.:< 'w., \ . . ...t . ' <: . "'*\. '-'. [ } , ' . " . æ t:' :', '>,< ' .:;" ... ::: .- "-::'." :'jJ ' ':;$: Felix Frankfurter T o almost any ranking American lawyer or jurist, an appointment to the United States Supreme Court means canonization this side of paradise. He becomes one of the Nine Immortals of this lawyer's republic; he puts into the final haven of a wel1- navigated life at the bar or in politics. For Felix Frankfurter, his elevation to the High Court in January, 1939, actu- ally meant, many of his friends believed, a step down. They felt that he already held a much bigger position, one that was far more powerful than that of any Justice of the Supreme Court. It was a very high position, although one that was nowhere described in the Constitu- tion. He was a whole institution in him- self. He was an Influence, a prodigious and pervasive one, working upon men and situations in every part of the coun- try. He advised, inspired, admonished. He was not one thing but all sorts of things. Perhaps most important, he was, some well-posted observers believed, a Jiminy Cricket to President Roosevelt's Pinocchio-Jiminy Cricket, the chirp- ing little Keeper of the Conscience, al- ways worrying about the scrapes Pi- nocchio might get into, always turning up with ad vice when he was in trouble, but always, no matter what came, beau- tifully devoted to his big, happy-go- lucky, venturesome friend and master. "\Vhy, Felix has more brains than the whole Brain Trust combined," a friend of his once said, implying that some of his brains would be wasted in the Court. Other friends hinted that he ought to refuse the appointment; they argued that the Supreme Court was nothing but a lot of mumbo-jumbo any- way. "Remember, Felix," one old and p R a F I o 0= 0: L é 5 JURIST -I privileged confrère said, "remember, from now on, as a Justice of the All- Highest Court, you will have to put on a high hat. You may even have to judge me. You won't be able to go on just being a good fellow with everyone." Frankfurter paid no attention to his friends. Although he had been refusing high public office for thirty years-ever since President Theodore Roosevelt, in 1 9 08, wan ted to make him a federal judge-this time he weakened easily. Once, many years before, his friend Louis Brandeis, when nominated for the Court by President \Vilson, had been bitterly attacked in the Senate. Asked if he would withdraw his name, Bran- deis replied, "A man doesn't refuse an appointment to the Supreme Court." Felix Frankfurter, at the time of his appoin tment, was fifty-six, a stocky, tense, five-foot-five-inch figure of a man, with a finely rounded, graying head and a keen face, which usually had a lively, birdlike expression. For over twenty years, Frankfurter, a pro- fessor of law, had operated from a mod- est office at the Harvard Law School, on the third floor of Langdell Hall, in the midst of endless, dusty tiers of lawbooks. The post at Harvard was a point from which the Frankfurter in- fluence and counsel radiated toward leading men and important events. A letter from this professor in the Har- vard Law School carried as much weigh t in its own way as a letter from the Morgan office at 23 \Vall Street. A great deal was being said of his close connections with the President, with governors and senators, and with pu- pils who had become assistant Pres- idents or assistant senators. Less was said of how much his teaching, his writing, and his stirring about in the legal field could sway the minds of the Supreme Court Justices themselves. Yet he had asked nothing of public men, just as he had always refused big-money induce- ments to enter the private practice of law. It was a long jump from the profes- sor's office at Cambridge to the vast, new white-marble palace of the Su- preme Court in \Vashington. Frankfur- ter expected the nomination and had himself well in hand when the news of it was published, but everybody else at the Harvard Law Schoo] was excited, especially the students. "Don't call me Judge," he protested to one of his classes the day he was nominated. "I haven't been confirmed yet." \Vhen he was con- firmed, twelve days later, his colleague and friend Professor Thomas Reed Powell rushed into his classroom with the telegram from \Vashington, and the students stood up and applauded cla- morously. Frankfurter bade farewell to them, saying, with a good deal of emo- tion, "It is not an easy thing for me to go to \\1 ashington. \Vhile there, I shall think of you often." Can a man be happy on the Su- preme Court bench? Life at the top of the legal hierarchy is painfully circum- scribed by a traditional decorum. Dur- ing the sessions of the Court, which last from noon until four-thirty, the tourist public pushes into the oversump- tuous courtroom and ganders at the black-robed Justices free of charge. "Nine black beetles in the Temple of Karnak," Justice Stone has called this performance. The late Oliver Wendell Holmes used to explode whenever he saw himself as a poor, inhibited Lord High Justice, cut off from low com- pany. "God," he would say, "if only I could have a perpendicular drink again! " On the eve of Frankfurter's departure for the capital to take his place in the Court, an old friend of his called at his home in Brattle Street, Cam- bridge, and found him packing. Frank- furter sat down on a trunk, hunched forward, crossed his legs, and swung them rapidly. "Do you know," he said reflectively, "I'm scared." F RANKFURTER'S success story can be used as a text to prove many things. Certainly it proves that in the old days before 1929 there was likely to be a career in America for a man of talent. Starting from a little below the bottom ( that is, from the steerage list), coming to America in 1894 as an immigrant, the child of relatively poor .l\ustrian Jews, Frankfurter in middle life was awarded the highest office which this country may give to a naturalized cit- izen. This happened despite the fact that he had never been quite the top man in any of the several fields of activity in which he had figured. For example, he was not specially qualified for the Su- preme Court through experience as a judge of one of the important state courts of appeal, as Holmes and Cardozo were.